Can a Child Testify in a Court Proceeding?

We are often asked in what circumstances a child can testify and when can a statement made by a child be used as evidence in a court proceeding. The use of child testimony is probably most common in child custody and abuse proceedings.

North Carolina law allows the court to use what a child tells him or her as evidence, but the final say regarding the statement or testimony’s admissibility is the judge’s. North Carolina law does not set out a particular age for when a person may be a witness in court. The legal test is whether the minor child is a competent witness, meaning that the child must be old enough to know what it means to tell the truth and is capable of expressing themselves in an understandable way. This is not a very high burden to overcome. Additionally, the North Carolina rules of evidence apply to statements made by children in the same way that they apply to statements made by adults.

In child custody proceedings, where the child will be testifying, unless both parties agree to another arrangement, the child is required to testify from the witness stand. This is a very stressful event for the child, the parents, lawyers and judge. Usually, if a child is going to be brought in, everyone wants the impact on the child to be reduced as much as possible. Usually, there is an agreement that the district court judge will talk to the child in her office. Alternatively, it may be permissible depending on the age of the child, for the child to sit on a parent’s lap while testifying, as this may help the child feel more comfortable.

Regardless of what a child has to say, a judge may decide custody in favor of the other parent. This is because sometimes the district court judge will find that what the son or daughter is saying has been “bought” by a parent with promises. Alternatively, sometimes, the court might find that the child simply does not know what is best for him or her. For example, the parties’ son might prefer to live with the parent who has fewer rules, more flexibility with curfews, or who does not make them do chores. The maturity of the minor is a factor for the judge to evaluate. It is important to remember that ultimately, in deciding where the child should live, the judge focuses on what is in the best interest of the child and not about what the child says he or she wants.

Allowing your child to testify in a court proceeding may be a viable option, but before doing so, it is important to weigh the emotional impact such an experience may have on your child versus the value likely gained from such testimony.